Legal Clips, [June 2007]The U.S. Supreme Court has ruled that student assignment plans in Jefferson County, Kentucky and Seattle, Washington that take a student’s race into consideration violate the Equal Protection Clause of the Fourteenth Amendment. The 5-4 decision reverses rulings by the U.S. Courts of Appeals for the Sixth and Ninth Circuits. Chief Justice Roberts wrote the Court’s opinion, which Justices Scalia, Thomas, and Alito joined in full but Justice Kennedy joined only in part. The Court identified the issue as whether a school district that had not operated legally segregated schools or that had done so but had since been declared by a court to have achieved "unitary" status may choose to classify students by race and rely upon that classification in making school assignments. The Court indicated that its prior cases evaluating racial classifications in the school context have recognized two governmental interests that qualify as sufficiently compelling to justify race-based classifications: remedying the effects of past intentional discrimination, which the Court noted was at issue in this case, and the "interest in diversity in higher education," which the Court had upheld in Grutter v. Bollinger, 539 U.S. 306 (2003). The law school admissions policy in Grutter was adopted in pursuit of a broad definition of diversity in which race was only one factor, focused on each applicant as an individual, rather than as a member of a particular racial group, and was viewed as indispensable in more than tripling minority representation. The Court found that the Seattle and Louisville plans, by contrast, use race not merely as one of several factors weighed but as the decisive factor; employ "only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/‘other’ terms in Jefferson County"; and have such a minimal effect as "casts doubt on the necessity of using racial classifications." In addition, the Court found that the school districts "failed to show that they considered methods other than explicit racial classifications to achieve their stated goals."
The four-vote plurality—that part of the Chief Justice’s opinion in which Justice Kennedy did not join—also found that the districts’ plans were directed only at racial balance, "rather than any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits." The varied descriptions of the school boards’ goals, such as diversity or avoidance of racial isolation, amount to impermissible racial balancing, the plurality found, which is not a compelling state interest. The plurality also sharply criticized the dissent, concluding that that the plaintiffs’ arguments were the more faithful to the principles of Brown v. Bd. of Educ., 347 U.S. 483 (1954) because they and their amici asserted, "[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race."
Justice Kennedy’s concurring opinion broke with the Chief Justice’s opinion to the extent that the Chief Justice rejected diversity as a compelling interest. Justice Kennedy argued that diversity, "depending on its meaning and definition, is a compelling educational goal a school district may pursue." While he agreed with the plurality that neither Seattle nor Jefferson County school districts had met its burden of demonstrating that its plan was "narrowly tailored" to meeting the goal of racial diversity, he expressed concern that "the plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race." He argued that schools "are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of systematic, individual typing by race." He added that school boards may use means such as site selection of schools, attendance zones, special programs, targeted recruiting, and tracking data by race, which are race conscious but do not lead to different treatment on an individual basis and so would be unlikely to demand strict scrutiny by a court.
Justice Thomas filed a concurring opinion that took Justice Breyer’s dissent to task, disputing the assertion that resegregation is occurring in Seattle or Louisville. He characterized the dissent as "[d]isfavoring a color-blind interpretation of the Constitution" and contended that the "dissent would give school boards a free hand to make decisions on the basis of race an approach reminiscent of that advocated by the segregationists in Brown."
Justice Breyer’s dissent, which was joined by Justices Stevens, Souter, and Ginsburg, found that the specific feature of the districts’ plans satisfied the strict scrutiny that courts apply to race-based classifications by the government. Their limited and historically diminishing use of race, their reliance on other non-race-conscious elements, the manner in which the districts developed and repeatedly modified their approaches, the comparison with prior plans, and the lack of reasonably evident alternatives combined to show that they were narrowly tailored to achieve their compelling goals, the dissent argued. "To invalidate the plans under review is to threaten the promise of Brown," the dissent concluded. "The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret."
In his separate dissent, Justice Stevens denounced the "cruel irony" of the Chief Justice’s reliance on Brown, arguing that the Chief Justice "rewrites the history of one of this Court’s most important decisions" by stating that, before Brown, "schoolchildren were told where they could and could not go to school based on the color of their skin" and ignoring the fact that "it was only black schoolchildren who were so ordered." He added that the Court used to be "more respectful of our precedent" and stated his "firm conviction that no Member of the Court I joined in 1975 would have agreed with today’s decision."
Parents Involved in Cmty. Schools v. Seattle Sch. Dist. No. 1, No. 05-908
[Full opinion]
[Editor’s Note: The Court issued one decision addressing both cases. The Louisville case was Meredith v. Jefferson County Bd. of Educ., No. 05-915. Justice Kennedy’s concurrence will be the focus of much attention as school boards and their attorneys contemplate the implications of these rulings. The collection of online resources below includes links to summaries of the lower court decisions, other related court opinions, commentary, research and on diversity in education and resources on striving toward that goal, briefs by the parties in the cases, and the amicus brief submitted by NSBA and a broad coalition of the nation’s educational organizations.]
[NSBA online resources on diversity cases]